Why I Don't Want to See the Drone Memo

Why I Don't Want to See the Drone Memo

And
when the people saw that Moses delayed to come down out of
the mount, the people gathered themselves together unto
Aaron, and said unto him, Up, make us a secret memo that
gets us out of the bit about Thou-shalt-not-kill.

And,
lo, as I was driving home from the committee hearing I was
pulled over for speeding, and I said unto the officer, "I've
got a memo that lets me speed. Would you like to see it?"
and he said, "No thank you, and not your grocery list or
your diary either."

Transparency in drone murders has been
a demand pushed by U.N. lawyers and pre-vetted Congressional
witnesses, and not by the victims' families. Nobody asks for
transparency in child abuse or rape. "Oh, have you got a
memo that explains how aliens commanded you to kill and eat
those people? Oh, well that's all right then."

Seriously,
what the filibuster?

I don't want to see the memo that
David Barron wrote "legalizing" the killing of U.S. citizens
with drone strikes, after which (or is it beforehand?) I'll
decide whether he should be a federal judge.

Laws don't
work that way. A law is a public document, known to or
knowable to all, and enforced equally on all. If a president
can instruct a lawyer to write a memo legalizing murder,
what can a president not instruct a lawyer to legalize?
What's left of legality?

Let's assume that the memo argues
with great obfuscation that, in essence, killing people with
drones is part of a war and therefore legal, will we better
off or worse off after watching all the human rights groups
and lawyers bow down before that idol?

Just because
Amnesty International and Human Rights Watch don't recognize
the U.N. Charter or the Kellogg Briand Pact is not a reason
for us not to. Laws don't work that way. Laws remain law
until they are repealed. These laws have not been. If a memo
can make a murder part of a war and therefore legal, we are
obliged to ask: What makes the war legal?

The answer is
not the U.S. government, not the pretense that the president
can declare war, and not the pretense that Congress has
declared eternal war everywhere. The U.S. government is in
violation of the U.N. Charter and of the Kellogg Briand
Pact.

Or let's assume the memo says something else. The
point is not what it says but its purported power to say it.
The law against murder in Pakistan and the law against
murder in Yemen don't cease to exist in Pakistan and Yemen
because a new Jay Bybee, willing to say whatever's needed to
become a judge, writes a secret memo -- or a public
memo.

And, as this conversation plays out, think what it
will have U.S. editorial pages all silently assuming about
the legality of murdering non-U.S. citizens. If a memo is
needed to kill U.S. citizens, what about the other 99% of
drone victims? That, too, is not how actual laws work. The
laws against war don't prevent war only on U.S. citizens.
The laws of Pakistan don't protect only U.S. citizens. The
amendments in the U.S. bill of rights, for that matter,
don't apply only to U.S. citizens.

Now, the memo is likely
to describe people who are an imminent threat to the United
States. And our newspapers are likely to remind us that
President Obama made a speech claiming that one of the four
U.S. citizens known to have been killed under this program
was such a threat. It will be tempting to point out that
Anwar al Awlaki, on the contrary, was already on the kill
list prior to the incident that Obama claims justified
putting him there. It will be tempting to point out that
nobody's made even a blatantly false argument to justify
killing the other three U.S. citizens, much less the
thousands of other human beings.

We shouldn't fall for
those traps. A president is not legally allowed to invent
criteria for killing people. Never mind that he doesn't meet
his own criteria. We should not be so indecent or so lawless
as to engage in such a conversation. We should not want to
see the blood-soaked
memo.

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